8.  The applicant was born in 1940 and lives in Monaco.
9.  On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper’s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper.
10.  Later that same day, the applicant’s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p.m. that day.
11.  The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies.
12.  On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage.
13.  On 6 April 2008 a second series of articles on the applicant’s sexual activities was published in the News of the World.
14.  On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet.
15.  In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression:
“28... i) No Convention right has, as such, precedence over another;
ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘intense focus’ is necessary upon the comparative importance of the specific rights being claimed in the individual case;
iii) The Court must take into account the justification for interfering with or restricting each right;
iv) So too, the proportionality test must be applied to each.”
16.  He continued:
“29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication.”
17.  Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing:
“ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley’s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent’s website.”
18.  However, as to the extent of the applicant’s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on:
“33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘in the public domain’ that such an injunction would make no practical difference. 34. As Mr Millar [for News Group Newspapers Limited] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures.”
19.  He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting:
“36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.”
20.  The edited video footage was restored to the News of the World website shortly afterwards.
21.  In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place:
“Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not?
A: That was a major concern, yes.
Q: You were worried that the court might grant an injunction.
A: It was a consideration, yes.
...
Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified?
A: It is a risk all newspapers are faced with these days.
Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there?
A: No. It happens a lot.
Q: But you were not prepared to risk that on this occasion?
A: On this occasion.”
22.  On 24 July 2008 judgment was handed down in the privacy proceedings.
23.  Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “hardly satisfactory” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded:
“170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘in the round’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘mocking’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘responsible journalism’ ... [T]he judgment was made in a manner that could be characterised, at least, as ‘casual’ and ‘cavalier’.”
24.  Eady J went on to consider the newspaper’s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant’s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted:
“209. It is also clear that one of the main reasons for keeping the story ‘under wraps’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.”
25.  Eady J concluded that the newspaper articles and images constituted a breach of the applicant’s right to privacy. He found that there were no Nazi connotations in the applicant’s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images.
26.  On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression.
27.  Eady J recognised that the sum awarded would not constitute adequate redress, noting:
“230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on. 231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.”
28.  The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper.